1. This is an appeal under Section 116A of the Representation of the People Act. 1951 (hereinafter called 'the Act') against the order, dated 20-10-1964, of the Election Tribunal, Bhind, setting aside the election of the appellant to the Madhya Pradesh Legislative Assembly from the Morena Constituency on the around that he and his election agent Sumati Chand Shastri were guilty of the corrupt pratice of bribery within the meaning of Section 123(1) of the Act.
2. The allegation of the respondent (petitioner) was that the appellant, returned candidate and Sumati Chand Shaslri, who were the Chairman of the Standing Committee and the President, respectively, of the Municipal Council of Morena City at the relevant time, had by grossly abusing their status and power in the said Municipality and without lawful authority, mala fide with the sole aim and purpose of unduly influencing voters to vote in favour of the appellant, laid water lines and opened a few new public fountains within about a week prior to the date of the poll. The appellant admitted that he was the Chairman of the Standing Committee at the relevant time and that his election agent Sumati Chand Shastri was the President of the Municipal Council and that the public fountains in question were opened by them. But is was denied that that was done with a view to influence the voters or with any corrupt motive.
3. The Election Tribunal disbelieved the oral evidence of the petitioner's (respondent's) witnesses that the returned candidate and his election agent first demanded votes which were refused by the public and that on their giving promise to instal the fountains and then translating it into action they all promised to give votes It characterized their evidence as false, interested tutored and unnatural which did not inspire any confidence. It however, held that the documents produced by the returned candidate himself and the evidence of his witnesses amply proved that some three public fountains (taps) were opened by the Municipal Council during the month of November 1963 and that this exhibition of public charity in the form of opening public fountains to the needy persons cannot be but viewed with the only intention that he had an eye on the votes of those persons whom he had obliged in this way.
4. The learned counsel for the appellant contends that the conclusion of the Election Tribunal is based on pure surmises and cannot be supported In our opinion, the contention is correct and shall have to be accepted.
5. It is settled law that charges of corrupt practices are quasi criminal in character (see Harish Chandra v. Triloki Singh, 1957 SCR 370 at p 394 : ((S, AIR 1957 SC 444 at p 456)) and must be established by the person setting it up beyond reasonable doubt by evidence which is clear and unambiguous--proof by mere preponderance of probabilities, as in the trial of a civil suit, is not enough (see Mohan Singh v Bhanwarlal, AIR 1964 SC 1366 at p. 1370). In the instant case, the oral evidence as to the actual bargaining for votes having been disbelieved, the mere fact of the sanction his of three public fountains in localities where they were urgently needed could not lead to any necessary reasonable inference that it must have been done with a corrupt motive.
6. The first public fountain complained of was applied for by Karansingh Jatav and others of Gandhipura Ward No. 2 of the Harijan locality of the Morena Municipality by their application, dated 19-11-1968 (Ex. A-44), their application was supported by Abdul Bashir and Manoharlal, who were members of the Municipality and who had endorsed on the application that the public fountain was necessary in the ward in question. On this, the Chief Municipal Officer directed the Incharge Superintendent, Waterworks, to take necessary action and accordingly on Rs. 6 being deposited by Karansingh on 27-11-1968 a public fountain (tap) was ordered to be installed in that ward near the house of the 3aid Karansingh. The two other public taps were installed in Ganeshpura Mohalla. On 26-11-1963, an application (Ex A-67) was addressed by about six residents of the Mohalla to the President, Municipal Council, praying that though Ward No 5 had been provided with water connection, no arrangement had been made for water in their locality. They prayed that they be also provided with a public tap on an half-inch line for which they were willing to pay Rs. 6. The ward member. Laxmi Narayan Sharma endorsed their request saying that a public tap was essential. On this, the President. Municipal Council, ordered that arrangements be made for the installation of a public tap and the matter be placed before the Water Works Committee for confirmation. He further observed that Rs. 6 be got deposited and the work commenced. The paper then went to the Incharge Superintendent. Water Works, and the Chief Municipal Officer and ultimately on 27-11-1963 a public tap was ordered to be fitted in front of the house of Budhu Ram Kachhi.
Seeing the fitting of the aforesaid public fountain, some of the residents of Ganeshpura applied to the President, Municipal Council, on 27-11-1963, vide their application (Ex. A-43) praying that as pipe line was being laid, a public tap connection be also provided for them also from it and that they were willing to pay Rs. 6 by contributing from amongst themselves. This application was also endorsed by Laxmi Narayan Sharma, the ward member, saying that the applicants were very much inconvenienced in the absence of a public tap and that consequently it was necessary to instal one for them. On Bus, the President of the Municipal Council ordered that from the newly laid pipe line, a connection be also provided to them according to rules.
7. Sumati Chand Shastri (N.A.W. 84) has stated that public taps were provided to the public in accordance with the resolution of the Municipal Council (Ex. R-44), dated 2-6-1962, which reads as follows :
fely is'k gqbZA rdfey ns[kh xbZ] eafnj] efLtn o /kkfeZd laLFkkvksa ij : pkj ekgokj o ifCyd QkmuVsu ls : nl ds ctk; : N% ysus dk la'kks/ku iwoZ esa Lohdkj gks pqdk gSA mldk vey ekg vizsy '2 ;s ykxw djus dh eatwjh nh tkrh gSA izdk'ku dks dk;Z okgh tkjh j[kh tkosA loZ lEefr ls r; ik;k
ifCyd QkmUVsu Mcy okMZ e dk% o flaxy okMZ esa rhu is'kh okMZ vkSj ifCyd QkmuVsu yxk;s tkos izkFkfedrk ogka nh tkos tgka uy dh ykbu u gksA loZ lEefr ls r; ik;kA**
8. The providing of public fountains in the aforesaid three cases was a necessity and not a luxury. The fountains had been provided to the residents of the locality on payment of necessary fees by them. The prayers for installation of water connections were fully endorsed by the local? were both office-bearers of the Municipal Council at the relevant time and it was their duty to provide civil amenities to the public when requested to do so and when the circumstances of the case justified them. Under the circumstances, we do not think that he can be held guilty of a corrupt practice, if, in carrying out their routine civil public duties, their activities as such also appear to indirectly help them in their election activities. It is not meant to be suggested that candidates holding civic or other offices should discontinue or slow down their official activities due to elections for fear that these might have an effect on the fortunes of the elections. As a matter of fact, in whatever wav they may act, they were bound to be criticised, if they reacted promptly and efficiently to the needs of the people, they may be charged as guilty of corrupt practices; and if they reacted late, they may be characterised as inefficient and callously indifferent, towards public needs.
9. It may be that in carrying out his public duties, a candidate may be actuated by two motives, one innocent and laudable and the other corrupt, but in judging of his motives, it is always fair to give him the benefit of doubt unless there is strong evidence justifying ,the only reasonable inference that corrupt motives alone operated to guide his actions. It would be highly dangerous and subversive of all good civic administration to start with a presumption that all benevolent and public utility acts on the eve of the election were done with a corrupt motive unless the contrary were proved, and we cannot subscribe to such a proposition.
10. Under the circumstances, we are of opinion that there was no good and sufficient reason to hold that the installation of three public fountains. In question on or about 87-11-1963 was done with a corrupt motive to make the appellant guilty of a corrupt practice within the meaning of Section 123(1) of the Act.
11. The learned counsel sought to support the conclusions of. the learned Judge by asking us to rely on the oral evidence on the point which had been rejected by him in no uncertain terms. In our opinion, that evidence was quite worthless and deserved all the criticisms levelled against it by the learned Judge. It was rightly rejected.
12. We, therefore, hold that the charge of corrupt practice of bribery within the meaning of Section 123(1) of the Act had not been proved.
13. This would have concluded the appeal but for the cross-objection whereby the respondent challenges the election on other grounds also, on which he has failed before the Election Tribunal.
14. It is first contended that no issue was struck on his allegation contained in para (f) under the head "Water lines laid down and fountains opened" of para 8 (7) (b) of his election petition The allegation is : -
"In several wards at several places new Electric Poles sprang up and old Kachi tines were replaced by new and permanent ones
It is not explained why no objection was taken when no issue was struct and it may well be that the petitioner (respondent) had no serious intention of pressing it at the time Under the circumstances the learned Judge was quite right in ignoring it But even if it were to he considered it does not carry the case of the petitioner (respondent) any further. The learned counsel could point to no good and reliable evidence on the point: and in the absence of such evidence unmistakably proving that the alleged acts were done with a corrupt motive the activities by themselves would not attract the provisions of Section 123(1) of the Act.
15. The contention that issues Nos. 18 (a) and (b) were wrongly derided has no force The learned Judge has discussed this issue in paragraphs 126 and 134 and we agree with his appreciation of evidence and conclusion on the point Similarly the learned counsel challenged the finding of the Tribunal on issue No. 16 but could not point out in what way the finding of the learned Judge on the point was erroneous or vitiated. In out opinion the finding was well justified and the allegation of the petitioner (respondent) on the point was rightly rejected.
16. It was then very seriously contended that Shri J.N. Kaul and Shri S.C. Mishra were not duly appointed Returning Officer and Assistant Returning Officer respectively for the purpose of the bye-election in question. The argument was-
(a) that the notification (Ex. B-3) issued by the Election Commission under Section 21 of the Act appointing the Returning Officer and the Assistant Returning Officer by office was illegal.
(b) that even it appointment by office could be made Shri S.C. Mishra was not a Deputy Collector but an Additional Collector, Morena. at the relevant time and could not therefore, act as an assistant Returning Officer for the purpose of the bye-election in question.
It was therefore, contended that the election of the appellant conducted by Shri Raid and Shri Mishra as Returning Officer and Assistant Returning Officer respectively must be declared void under Section 100(1)(d)(iv) of the Act because the result of the election, in no far as it concerned him. had been materially affected by non-compliance with the provision of the Act.
17. Examining the contentions, we are of opinion that there is nothing in the Act to suggest that the designation, nomination or appointment must be by name and not by office. It is common knowledge that if the appointment of a Government servant to any particular office under any special Act is to enure for some time and has not to go to any particular person as a persona designate but to a class of persons who are all considered equally qualified or competent to perform it, it is more convenient to make it with reference to an office so that so long as there is some person filling the office, the appointment attaches to such a person. Under the circumstances, we see no reason to limit the power of appointment under the aforesaid provisions to any particular person. On the other hand, the nomination or appointment by office is quite valid and legal, and in full consonance with the provisions of the Act. We also find no fault in Shri Kaul acting as the Returning Officer. He was the Collector of Morena, the district where the Morena assembly constituency was situated, and as such quite competent to perform the duties of the Returning Officer for the constituency in question because the notification (Ex. R-3) issued by the Election Commission in consultation with the Government of Madhya Pradesh under Section 21 of the Act had specifically designated the Collector of the district, in which the assembly constituency in question was situate, as the Returning Officer for that constituency. The case of Shri Mishra, however presents some difficulty. Under the notification of the Election Commission issued by it under Section 22(1) of the Acl (Ex R-3) for the Morena assembly constituency,--
"All Deputy Collectors. Morena district, treasury Officer Morena, District Agriculture Officer. Morena. District Inspector of Schools, Morena" have been appointed the Assistant Resuming Officers Shri Mishra is no doubt, a Deputy Collector who had been transferred to Morena from Dewas by order of the State Government dated 4-6-1962 (Ex R-2); but from the notification of the State Government dated 11-9-1962 published in the Madhya Pradesh Rajpatra dated 12 10 1962 it is clear that he was appointed to be an Additional Collector in the district of Morena under Section 17 (2) of the Madhya Pradcsh Land Revenue Code, 1959. The question is whether he ceased to be a Deputy Collector on the publication of the aforesaid notification dated 11-0-1962.
18. Under Section 17 of the Code. -
" (1) The State Government may appoint one or more Additional Collectors in a district.
(2) An Additional Collector shall exercise such powers and discharge such dulies conferred and imposed on a Collector by or under this Code or by or under any other enactment for the time being in force, in such cases or class of cases as the State Government may, by a general order, notify or as the Collector of the district may, subject to any general or special restrictions imposed by the State Government, by an order in writing, direct.
(3) This Code and every other enactment for the time being in force and any rule made under this Code or any such other enactment shall, except where expressly directed otherwise, apply to the Additional Collector, when exercising any powers or discharging any duties under Sub-section (2 )aa if he were the Collector of the district. "
It would thus be seen that by simply being appointed an Additional Collector, a Deputy Collector does not begin to exercise all the powers and discharge all the duties conferred and imposed on a Collector, by or under the Code, or by and under any other enactment for the time being in force. He only exercises the Dowers and discharges the duties of a Deputy Collector, which he in fact is, except in such cases or class of cases as the State Government may by a general order notify or as the Collector of the district may. subject to any general or special restrictions imposed by the State Government by an order in writing, direct. This conception is again reinforced in Sub-section (3) of the section, so that there is no difficulty in holding that a Deputy Collector designated as an Additional Collector under Sub-section (1) is a Collector only when exercising any powers or discharging any duties under Sub-section (2) of the section There is no evidence that Shri Mishra had been, by a general or special order, directed to perform any of the functions or duties of a Collector under the Representation of the People Act, 1961. Consequently, he could not be held to be a Collector but only a Deputy Collector. No doubt, as he had been designated an Additional Collector under Sub-section (1) of Section 17 of the Code, he could at any time, by a general or special order, as specified in Sub-section (2) of Section 17, he asked to perform any of the functions of a Collector; but, subject to such an order, he could only exercise the powers of a Deputy Collector which was his substantive designation.
19. It may however, be argued that by the expression ' Deputy Collector' in the notification of the Election Commission under Section 22(1) of the Representation of the People Act, only such persons were meant who were Deputy Collectors and not Additional Collectors, or anything else and as Shri Mishra had been nominated an Additional Collector under the Madhya Pradesh Land Revenue Code, 1989, he could not be taken to be a Deputy Collector as required by the notification. In our opinion, the contention, even so put has no force. The notification (Ex. R-3) permitted a Deputy Collector to act as an Assistant Returning Officer. Shri Mishra was a Deputy Collector in the district of Morena. He was performing all the duties and discharging all the functions of a Deputy Collector of that district. He had not been notified, by any general or special order, to perform any of the functions of a Collector under the Representation of the People Act, 1901. Consequently, the mere fact that he was, by virtue of having been notified an Additional Collector under Section 17 (1) of the Madhya Pradesh Land Revenue Code, 1959, competent to perform such of the functions of a Collector as were assigned to him by a general or special order, would not take him out of the category of Deputy Collector within the meaning of the notification. We shall not pursue the point further because, in our opinion, even if it be held that he was not a Deputy Collector, the fact by itself would not vitiate the election as the result of the election of the appellant had not been affected thereby as we shall presently show.
20. It may here he mentioned that the act of Shri Mishra as the Assistant Returning Officer, which is complained of, is that of receiving a nomination paper It is alleged that under Section 31 of the Act, the Returning Officer for the constituency is required.
'to give public notice of the intended election in such form and manner as may be prescribed, inviting nominations of candidates for such election and specifying the place at which the nomination papers are to be delivered'.
Such a notice was given by the Returning Officer vide Ex. R-5, and vide Ex. R-6 that the nomination paper had to be submitted to the Returning Officer or the Assistant Returning Officer in the ^dk;kZy; DysDV ejStk* .The learned counsel for the appellant submits that neither was the nomination paper submitted to the right person nor at the right place. We have already discussed above the question of its submission to Shri Mishra as the Assistant Returning Officer. As regards the objection as to the place of its submission, we see no reason to hold that a nomination paper submitted to the Assistant Returning Officer at his own room [kkl dejk or in the 'tea club' (see the deposition of Mishra (A.W. 1), paragraph 9) was not submitted in the Collectorate as; mentioned in the notice At every place within! the Collectorate the nomination papers could be validly received, and it is not correct to say that they must necessarily be received in the court-room of the Collector or those of the Deputy Collectors as such to be valid. Besides, it is significant to note that the respondent had filed four nomination papers, and it is not known which nomination paper was received by whom and where; and consequently it could not definitely be said that all the nomination paper's were vitiated, unless it could be affirmatively established on evidence that any particular nomination objected to was accepted by a wrong person or at a wrong place.
21. It is next contended that no public notice of election was given as required by Section 31 of the Act, in so far as the notification under Section 30 was published on 1-11-1968 and the public notice of the intended election under Section 31 was given on 30-10-1963 The contention is that a public notice under Section 31 of the Act has to be given 'on the issue of a notification under Section 30'; and under Section 20, the notification has to be in the Official Gazette, so that the expression 'on the Issue of a notification under Section 30' in Section 31 means on the issue of a notification in the Official Gazette as required by Section 30. In our opinion, there is no merit in the contention. Ex. R 6 is the public notice under Section 31. It was published on 1 11-1963. No doubt, as Ex. R-5 shows, it was prepared on 30-10-1963; but it was directed to be published on 1-11-1963 by 10 a.m. The notification under Section 30 was also published in the Official Gazette on 1-11-1963. which must have been on the dawn of the 1st of November 1963: (see Madhya Pradesh Gazette Extraordinary, dated 1-11-1963, p. 2931) Consequently, the public, notice under Section 31 of the Act, which was given on the issue of the notification under Section 30 as required by the Act, cannot be held to he invalid. It has to be remembered that the election is an integrated process which has to be completed within the scheduled time which is admittedly very short, and consequently we cannot cut the time of the publication of various notices too fine and thus find fault with them Besides, it is again a trite to say that any irregularity in this behalf, even if proved will not vitiate the election unless the result of the election had been materially affected thereby of which there is no evidence in this case
22. The next contention bears on an interpretation of Article 173 of the Constitution as amended by the Sixteenth Amendment which, so far as relevant for our purpose now. reads as follows
"173 A person shall not he qualified to be chosen to fill a seal in the Legislature of a Stale unless he-
(a) makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule "
XX X X XX
Such an oath of affirmation was, no doubt, taken by the candidates: but the contention is that the forms evidencing the fact of their having been taken or affirmed did not accompany the nomination papers and in their absence. the nominations could not be held to be valid as thev were of persons who were not qualified to be chosen within the meaning of Article 173 of the Constitution
23. The argument, though ingenious, cannot be sustained. Under Section 32 of the Act.-
" Any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act."
Under Article 173 of the Constitution, a person shall not be qualified to be chosen unless he makes and subscribes before some person authorized in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule This form says "I having been nominated as a candidate to fill a seat in the Legislative Assembly. . ." The form of the oath shows that it has to be subscribed to or affirmed on being nominated, which apparently conflicts with the provisions of Section 38 of the Act, which provide that in order to be qualified to be chosen to fill a seat within the meaning of Article 173 of the Constitution the oath or affirmation has to precede the nomination. In our opinion, the conflict is more apparent than real. Section 32 of the Act deals with the situation which finally emerges on the nomination of a candidate being accepted. Prior to that various steps in the election process have to be gone through beginning with the filing of a nomination paper before the Returning Officer as required by Section 33, its scrutiny under Section 36, and its final acceptance or rejection under Sub-section (6) thereof. The form of the oath or affirmation shows that it has to be subscribed to or affirmed on being nominated, which expression in the context in which it has been used means when the candidate, either in person or through his proposer, delivers to the Returning Officer in the manner and within the lime prescribed a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer. It is the presentation of the nomination papers under Section 33 which creates an occasion for the making of oath or affirmation in terms of Article 173 of the Constitution In this context the language of Section 36(2)(a) of the Act is quite instructive. If says that the Returning Officer may reject a nomination if on the date fixed for the scrutiny of nominations, the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provision that may be applicable, namely. Articles 84, 102, 173 and 191. It would be observed that qualification of a candidate to fill a seat in terms of Article 173 of the Constitution has to be enquired into with reference to the date fixed for scrutiny of nominations, and consequently it is on that dale that the requirements of Article 173 as regards the required oath or affirmation must be satisfied We, therefore, do not think that it is correct to suggest that a nomination paper which is unaccompanied with the required oath or affirmation as prescribed, by Article 173 of the Constitution is an invalid nomination of a candidate who is not qualified to fill a seat in the Legislative Assembly of the State.
24. The appellant's oath was made once on 10-11-1963 before Shri Mishra and then on 11-11-1963 before Shri Kaul (see Exs. A-5 (R-7) and A-6 (R-8) respectively). Both were made before scrutiny of nominations which took place on 11-11-1963. In terms of the notification of the Election Commission as pointed out by the Election Tribunal in its order, in paragraph 40 el seq., the oath or affirmation made before Shri Kaul was valid and no exception can be taken to it. The contention of the learned counsel for the respondent on this point is therefore, hereby rejected
25. The next contention of the learned counsel for the respondent is regarding the change of polling stations. The allegation is that polling stations were altered without lawful authority and that this illegality had materially affected the result of the election. The Election Tribunal has discussed this issue in paragraphs 23 to 37 of its order; and in our opinion, it has correctly rejected it. We generally agree with its findings and conclusions on the point. We may, however, point out that Section 26 of the Act provides that
'the Returning Officer for each constituency shall, with the previous approval of the Election Commission, provide a sufficient number of polling stations for such constituency and shall publish, in such manner as the Election Commission may direct, a list showing the polling stations so provided and the polling areas or groups of voters for which thev have respectively been provided'.
The manner of publication of the list of polling stations and any changes therein is provided in the instructions of the Election Commission contained in Ex. A-21, which says :
"After the list has been prepared on the above lines publish it in draft for general information inviting objections and suggestions by a specified date. Copies of the lists should be supplied to the local branches of all recognized political parties and to the sitting members of the constituency in the Lok Sabha and Vidhan Sabha You should thereafter call the party representative and legislators to a meeting and discuss the provisional list and the suggestions received. (Where the list is required to be prepared urgently, this consultation may, with the approval of the Commission, be dispensed with). Then take your own decisions, amend the provisional list where necessary and forward" it and the map to the commission through the Chief Electoral Officer."
The Election Tribunal has shown that from the documentary evidence as also from the oral testimony of the Returning Officer and the Assistant Returning Officer it was clear that ten polling stations were changed with the consent of all parties, while one Bamrauli was changed with the previous approval of the Election Commission and the change communicated to all the candidates on 28-11-1963, well before the date of polling As regards Piperkhera, the change was proposed on 4-12-1963 and approved by the Election Commission on 5-12-1963, the date on which the polling had taken place. The fact that the approval was received by the Returning Officer on 6-12-1963 will, in our opinion, not make the change as one without legal authority or irregular, because in cases of urgency the consultation provided for in the aforementioned instructions could be dispensed with, with the previous approval of the Election Commission. Thai there was urgency cannot be disputed because from Ex. R-71 it appears that though originally the school building at Piperkhera was proposed to be the polling station, it was discovered that there was no school building there. An alternative had, therefore, to be provided, which was provided in a temporary structure in the village. There was thus no non-compliance with the Act or the rules in changing tile polling stations; and in any case, in view of the fact that the respondent bad not established that the result of the election had been affected thereby, the illegality or irregularity, if any, could not and did not affect the election of the appellant.
26. At this stage we may again observe that an election of a returned candidate cannot be declared void under Section 100(1)(d)(iv) of the Representation of the People Act, 1951 unless the petitioner affirmatively establishes that the result of the election, in so far as the returned candidate was concerned, had been materially affected by any non-compliance with the provisions of the Constitution or the Representation of the People Act or of any rules or orders made thereunder. The requirement may be onerous but has to be discharged; and in the instant case there is no good and adequate evidence which could lead us to hold that it had been sufficiently discharged, even if it were to be held that the provisions of Section 100(1)(d)(iv) of the Act had been contravened.
27. The last contention raised by the learned counsel for the respondent is regarding costs; but as we are allowing the appeal, no modification in this respect in favour of the respondent is called for. Even otherwise, looking to the number of useless and frivolous grounds taken by him, the exercise of discretion by the Election Tribunal in awarding him only one-fourth costs cannot be said to be so unreasonable or perverse as to require interference, except to the extent that counsel's fee claimed, if certified before the signing of the order, ought to have been allowed. The cross-objection filed by the respondent, therefore, fails and is dismissed.
28. In the result, the appeal is allowed and the election petition filed by the respondent dismissed with costs throughout. Counsel's fee Rs. nil as no certificate filed.